Karnataka High Court

Goura Das Choudhury @ Gour Choudary vs M/S. I C I C I Lombardo General Insurance ... on 16 October, 2024

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                                                           MFA No.7591/2017
                                                       C/W MFA No.7875/2017



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 16TH DAY OF OCTOBER, 2024
                                             PRESENT
                          THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                                               AND
                       THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                     MISCELLANEOUS FIRST APPEAL NO.7591/2017 (MV-D)
                                              C/W
                     MISCELLANEOUS FIRST APPEAL NO.7875/2017 (MV-D)


                IN M.F.A. No.7591/2017

                BETWEEN:

                1.   GOURA DAS CHOUDHURY @ GOUR CHOUDARY
                     S/O LATE RABINDRA DAS CHOUDHURY
                     AGED ABOUT 59 YEARS.

                2.   MRS. MOUSHUMI DAS CHOUDHURY
                     W/O GOURA DAS CHOUDHURY @ GOUR CHOUDARY
Digitally
signed by K S        AGED ABOUT 51 YEARS.
RENUKAMBA
Location:       3.   MISS. SREYA DAS CHOUDHURY
High Court of        D/O GOURA DAS CHOUDHURY @ GOUR CHOUDARY
Karnataka            AGED ABOUT 16 YEARS
                     MINOR, REPRESENTED BY HER
                     FATHER AND NATURAL GUARDIAN
                     THE FIRST APPELLAT VIZ.,
                     GOURA DAS CHOUDHURY @ GOUR CHOUDARY.

                     ALL ARE RESIDING AT
                     SOURA NILAYA HOUSING COMPLEX
                     BLOCK-N, FLAT NO.3A, 3RD FLOOR
                     1-KAILASH GHOSH ROAD
                     BARISHA, KOLKATA-700 008
                     WEST BENGAL.

                                                                 ...APPELLANTS
                (BY SRI. A.K. BHAT, ADV.,)
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                                         MFA No.7591/2017
                                     C/W MFA No.7875/2017




AND:

1.   M/S. I C I C I LOMBARDO GENERAL INSURANCE CO. LTD.,
     REP BY ITS MANAGER
     T. P. CLAIMS HUB
     NO.89, 2ND FLOOR, SVR COMPLEX
     HOSUR MAIN ROAD, MADIWALA
     BENGALURU-560 068.

     NOW AT #121, 9TH FLOOR
     THE ESTATE BUILDING
     DICKENSON ROAD
     BENGALURU-560 042.

2.   SUBRAMANI .K
     MAJOR
     R/AT MUNESHWARANAGARA
     RUPENA AGRAHARA, HOSUR MAIN ROAD
     BENGALURU-560 068.

3.   R. LOKESH
     MAJOR
     S/O RADHA KRISHNA
     R/AT NEAR HOSKOTE BUS STAND
     KURUBARA BEEDI, HOSKOTE
     BENGALURU DISTRICT-562 114.

                                               ...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADV., FOR R1
V/O DTD:25.01.2021 NOTICE TO R2 & R3 IS D/W)


       THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL
FOR THE RECORDS AND SET ASIDE THE AWARD PASSED BY THE
COURT OF SMALL CAUSES AND MACT AT BENGALURU, (SCCH-16),
IN MVC NO.3823/2014 DATED 27.04.2017 BY ALLOWING THE
APPEAL AND IN ENHANCING THE AWARD OF THE TRIBUANL, IN THE
INTEREST OF JUSTICE AND EQUITY.
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                                           MFA No.7591/2017
                                       C/W MFA No.7875/2017



IN M.F.A. NO.7875/2017

BETWEEN:

     M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.,
     TP CLAIM HUB
     NO.98, 2ND FLOOR, SVR COMPLEX
     HOSUR MAIN ROAD, MADIWALA
     BANGALORE-68.

     NOW REP. LBY ITS LEGAL MANAGER
     M/S ICICI LOMBARD GIC LTD.,
     REGIONAL OFFICE, THE ESTATE
     9TH FLOOR, DICKENSON ROAD
     M.G.ROAD, BANGALORE-42.

                                              ...APPELLANT

(BY SRI. B.C. SHIVANNE GOWDA, ADV.,)

AND:

1.   GOURA DAS CHOUDHARY @ GOUR CHOUDHARY
     S/O LATE RABINDRA DAS CHOUDHARY
     AGED ABOUT 59 YEARS.

2.   MRS. MOUSHUMI DAS CHOUDHARY
     W/O GOURA DAS CHOUDHARY @ GOUR CHOUDHARY
     AGED ABOUT 51 YEARS.

3.   MRS. SREYA DAS CHOUDHARY
     D/O GOURA DAS CHOUDHARY @ GOUR CHOUDHARY
     AGED ABOUT 16 YEARS.

     RESPONDENT NO.3 IS MINOR
     REPT. BY NATURAL GUADIAN I.E., 1ST RESPONDENT.

     ALL ARE R/AT
     SOURA NILAYA HOUSING COMPLEX
     BLOCK-N, FLAT NO 3A, 3RD FLOOR
     I-KAILASH GHOUSH ROAD
     BARISHA, KOLKATA-700008.

4.   SUBRAMANI .K
     R/AT MUNESHWARA NAGARA
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                                        MFA No.7591/2017
                                    C/W MFA No.7875/2017



     REPUENA AGRAHARA
     HOSUR MAIN ROAD
     BAGNALORE-560068.

5.   R. LOKESH
     S/O RADHAKRISHNA
     R/AT. NEAR HOSKOTE BUS STAND
     KURUBARA BEEDI, HOSKOTE
     BANGALORE DISTRICT-562114.

                                         ...RESPONDENTS

(BY SRI. A.K. BHAT, ADV., FOR R1 TO R3
V/O DTD:04.03.2024 APPEAL AGAINST R4 & R5 IS DISMISSED)

    THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT AND
AWARD DATED 27.04.2014, PASSED BY THE COURT OF SMALL
CAUSES AND MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BANGALORE, IN MVC NO.3823/2014 AND TO PASS SUCH OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING
THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

      THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MRS JUSTICE K.S.MUDAGAL
          and
          HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                     ORAL JUDGMENT

(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

The above appeals arise out of the judgment and

award in MVC.No.3823/2014 passed by the MACT and X

Additional Judge, Court of Small Causes, Bengaluru.

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2. The appellants in MFA.No.7591/2017 were

claimant Nos.1 to 3 and respondents in the said case were

respondent Nos.1 to 3 in MVC.No.3823/2014. For the

purpose of convenience, the parties are referred to

henceforth according to their ranks before the tribunal.

3. Claimant Nos.1 and 2 are the parents and

claimant No.3 is the younger sister of the deceased

Gaurav Das Choudhury. On 25.12.2013 at 1:00 p.m.,

when Gaurav Das Choudhury was travelling in auto

rickshaw bearing Reg. No. KA-05/5574 along with his two

colleagues near Elcia Pump House within the limits of

electronic city traffic police station, Honda Dio motor

scooter bearing Reg. No. KA-51-EE-7963 hit the said auto

rickshaw. Due to the impact auto rickshaw went and hit

the road side tree. In the accident Gaurav Das Choudhury

suffered grievous injuries and died. Respondent No.2 was

the owner of the scooter and respondent No.3 was the

owner of auto rickshaw. Respondent No.1 was the insurer

of scooter No. KA-51-EE-7963.

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4. Claimants filed MVC.No.3823/2014 before the

tribunal claiming compensation of Rs.90,00,000/-

contending that the accident occurred due to the

actionable negligence on the part of the driver of the auto

rickshaw and scooter, deceased was earning Rs.52,355/-

per month and they were all dependent on his income.

Therefore, the respondents are liable to pay the said

compensation.

5. Respondent Nos.2 and 3 did not contest the

petition. Respondent No.1 alone contested the petition

denying the actionable negligence on the part of the rider

of the scooter, age, occupation and income of the

deceased and its liability to pay the compensation.

Respondent No.1 also contended that drivers of both

scooter and auto rickshaw were negligent and accident

occurred due to the composite negligence of both the

drivers.

6. Before the tribunal, in support of the case of the

claimants, claimant No.1 was examined as PW1,

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representative of the employer of the deceased was

examined as PW2 and eye witness/complainant in the

criminal case was examined as PW3 and Exs.P1 to P33

were marked. On behalf of respondent No.1 its legal

manager was examined as RW1 and insurance policy was

marked as Ex.R1.

7. The tribunal on hearing both side, by the

impugned judgment and award relying on the evidence of

the claimants and Ex.P4-spot sketch, held that the

accident occurred due to the actionable negligence on the

part of the rider of the scooter. The tribunal considered the

income of the deceased as Rs.45,609/- per month, added

50% to the same by way of future prospects, considering

his age as 22 years deducted 50% for the personal

expenses of the deceased, applied 18 multiplier and

awarded compensation of Rs.73,88,496/- on the head of

loss of dependency. The tribunal in all awarded

compensation at Rs.76,28,496/- on different heads as

follows:

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Sl. Head of Compensation Amount/Rs No.

1. Loss of dependency 73,88,496-00

2. Loss of estate 50,000-00

3. Loss of love and affection 1,00,000-00

4. Loss of expectancy of life 50,000-00

5. Funeral and transportation 40,000-00 expenses Total 76,28,496-00

8. Out of the aforesaid amount, the tribunal

deducted Rs.2,50,000/- on the ground that the employer

had reimbursed the same under the insurance policy and

awarded compensation of Rs.73,78,496/- with interest at

9% per annum. Challenging the said judgment and award,

the insurer has preferred MFA.No.7875/2017 and the

claimants have filed MFA.No.7591/2017.

Submission of Sri. B.C.Shivannegowda, learned counsel for the insurer:

9. Claimants in the pleading contended that the

accident occurred due to negligence of the rider/driver of

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both the vehicles, even the charge sheet was filed against

rider/driver of both the vehicles. The claimants own

records show that the auto rickshaw driver was carrying 5

persons along with him and that has caused the accident.

Therefore, the tribunal was in error in passing the entire

negligence to the driver of the auto rickshaw. The tribunal

committed error in adding 50% to the income of the

deceased by way of future prospects, the compensation

awarded on all the heads is on the higher side. Interest

awarded is also on the higher side.

Submisssion of Sri. A.K. Bhat, learned counsel for the claimants:

10. Insurer itself in its pleading contended that the

accident occurred due to the composite negligence of both

the drivers. Further, Ex.P4-sketch shows that the rider of

the scooter who was coming from the opposite side has

proceeded completely on the wrong side and dashed

against the auto rickshaw and that has led to auto

rickshaw hitting the tree. If auto rickshaw was carrying

more than permitted passengers, at the most that entails

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criminal prosecution of the driver, but negligence cannot

be attributed to the driver of the auto rickshaw. The

tribunal was in error in considering the net salary of the

deceased in assessing the compensation, even the

deduction of 50% for the personal expenses is wrong as

the deceased had minor sibling i.e. claimant No.3. The

compensation awarded on the other heads is also on the

lower side.

11. Considering the submissions of both side and on

examining the material on record, the points that arise for

determination of the Court are:

i) Whether the finding of the tribunal that the

accident occurred solely due to the negligence of

the rider of the scooter No. KA-51-EE-796 is

sustainable?

ii) Whether the compensation awarded is

justified?

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ANALYSIS

Reg. Negligence:

12. The fact that on 25.12.2013 at 1:00 p.m., when

Gaurav Das Choudhury was travelling in auto rickshaw No.

KA-05/5574, there was an accident between the said auto

rickshaw and Honda Dio motor scooter No. KA-51-EE-7963

and he suffered injuries in the accident and died, is not in

dispute. The counsel for insurer of the said scooter relying

on the charge sheet contends that auto rickshaw driver

was carrying more than prescribed passengers and that

has contributed to the accident.

13. Though the charge sheet has the presumptive

value, it is settled law that it is not the conclusive proof. To

substantiate their contention that the accident occurred

due to the actionable negligence of the rider of the

scooter. The claimants relied on the evidence of PW3-eye

witness and Ex.P4-sketch of scene of the incident. PW3

being the complainant/eye witness is not in dispute. He

deposed that the rider of the scooter came from the

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opposite direction in high speed and rash and negligent

manner without following traffic rules and hit the auto

rickshaw. Therefore, auto rickshaw driver lost control and

hit the road side tree leading to the injuries and death of

Gaurav Das Choudhury. In his cross examination, he

denies the suggestion that the auto rickshaw driver was

not properly driving the auto rickshaw and he was

uncontrollable.

14. Ex.P4-sketch of scene of offence shows that the

auto rickshaw was proceeding on the left border of the

road and the scooter was coming from the opposite

direction. The rider of the scooter should have been left

side of his road but he has proceeded on extreme right

side in a wrong direction and hit the auto rickshaw.

According to the claimants, due to that impact, the auto

rickshaw lost control and gone to its left side and hit road

side tree.

15. It is no doubt true that the records show that

the driver of the auto rickshaw was carrying earlier three

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passengers i.e., PW3, deceased and their colleagues later

picked up two more persons and they were sitting on the

side of the driver in his seat. To impute that factor as a

cause of the accident, there should be a direct nexus

between such overloading in the auto rickshaw and the

accident. As per the records such carrying more than

prescribed limit was not the cause of the accident. Had the

scooter not hit the auto rickshaw, the auto rickshaw

probably could not have went out of road and hit the tree.

Such action of the driver of the auto rickshaw in carrying

more than the prescribed passenger may entail his

criminal prosecution. But that itself does not constitute the

cause of accident. Therefore, the said contention was

rightly rejected by the tribunal. Having regard to Ex.P4

and the evidence of PW3, it cannot be said that the finding

of the tribunal regarding actionable negligence on the part

of the rider of the scooter is incorrect. Thus, that has to be

upheld.

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Reg. Quantum:

16. The evidence of PW2, the Manager - HR in

Department Of Telecommunication Union of India coupled

with Exs.P22 to 30, the offer of appointment letter,

acceptance of appointment, joining report, appointment

order, pay slips, Form No.16 etc., show that the deceased

was working in the Telecom Department as Research

Engineer on the pay scale of Rs.15,600/- to Rs.39,100/-

with effect from 1.08.2013. It is also not disputed that he

was B.tech degree holder. Pay slips of the month of

September to November 2013 are together marked at

Ex.P12. Out of them his last month salary has to be taken

as his income. The salary slip for the month of November

2013 shows that his gross monthly salary was Rs.52,355/-

. Therefore, his annual salary comes to Rs.6,28,260/-

(52,355 x 12). As per the Finance Act, 2013 the tax

payable on the said annual income was Rs.55,652/- and

professional tax of Rs.2,400/- has also been deducted

from his income. Therefore, his annual contribution to his

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family comes to Rs.5,70,208/- (6,28,260 - 58,052). The

deceased was aged 22 years. As per judgment of the

Hon'ble Supreme Court in National Insurance Company

Ltd., v. Pranay Sethi1 40% has to be added to his

income towards future prospects. Therefore, his total

income comes to Rs.7,98,291/- [5,70,208 + 2,28,083

(future prospects)] rounded to Rs.7,98,300/-.

17. Learned counsel for the claimants contends that

the deceased had a minor sibling, therefore for his

personal income 1/3rd should have been deducted. But the

evidence of PW1 i.e., the father of claimant No.3 and the

deceased shows that he was working as Deputy manager

at Kolkata Gas Supply Corporation Ltd., and his monthly

salary was between Rs.60,000/- to Rs.70,000/-.

Therefore, claimant No.3 cannot be considered as the

dependent of the deceased. Hence, the tribunal was

justified in deducting 50% of the income of the deceased

for his personal expenses. On such deduction his annual

2017 (16) SCC 680

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income comes to Rs.3,99,150/-. For his age, applicable

multiplier is 18. Therefore, compensation payable on the

head of loss of dependency comes to Rs.71,84,700/-

(3,99,130 x 18).

18. As per the judgment of the Supreme Court in

Sebastiani Lakra v. National Insurance Company

Ltd.,2 any benefit received from the employer of the

deceased due to the employment conditions cannot be

deducted from the compensation payable. Such deduction

by the tribunal is erroneous. As per the judgment of the

Hon'ble Supreme Court in case of Pranay Sethi referred

supra and Magma General Insurance Company

Limited v. Nanu Ram & Others3, on the head of loss of

consortium each of the claimants are entitled to

compensation of Rs.40,000/- with escalation at 10% for

every three years. Similarly, the claimants are entitled to

compensation of Rs.15,000/- under the head of loss of

funeral expenses and Rs.15,000/- under the head of loss

AIR 18 SCC 5034

(2018) 18 SCC 130

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of estate with escalation at 10% for every 3 years which

comes to Rs.36,000/-. Therefore, the just compensation

payable is as follows:

1. Loss of dependency Rs.71,84,700/-

2. Loss of consortium (48,000 x Rs. 1,44,000/-

3)

3. Loss of funeral expenses Rs. 18,000/-

4. Loss of estate Rs, 18,000/-

Total Rs.73,64,700/-

19. For the aforesaid reasons claimants appeal is

liable to be dismissed and the insurer's appeal deserves to

be allowed. Hence, the following:

ORDER

i) MFA.No.7591/2017 is dismissed.

ii) MFA.No.7875/2017 is allowed in part.

iii) The impugned award is modified as follows:

              a.   The      MVC.No.3823/2014       is   partly

     allowed.
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             b.     The   claimants       are    held   entitled   to

      compensation        of   Rs.73,64,700/-       with    interest